Can DMCA takedown notices be copyrighted themselves?

Do DMCA takedown notices, those legal writs nobody wants to find in their mailbox,  enjoy the same copyright protection as music, films and video games? According to some DMCA takedown notices making the rounds, they do.

Certain takedown notice companies are actively informing recipients via the letter itself that they should not share it with third parties, as doing so would violate the notice’s copyright. How exactly could these takedown notices, which exist solely to demand a site remove infringing material, claim such a thing?

Good question.

An article at techdirt broached the subject after noticing a blog post by Tom Rubin, Chief Counsel for Intellectual Property Strategy at Microsoft, that included one such DMCA form proclaiming its copyright protection. The entry, simply titled “Anti-transparency,” offers a similarly curt statement in regard to the notice: “This is a step in the opposite direction of optimizing copyright for the cloud,” Rubin writes.

If this sounds a bit like one of those ‘chicken or egg’ scenarios, that’s because it is; DMCA takedown notices wouldn’t exist if not for copyright infringement claims. But who are these “third parties” the letters refer to? Sites like ChillingEffects.org – which collects cease and desist notices and posts them for public perusal – is one such party directly named. In addition to maintaining a C&D database, the group aims to help users “understand the protections that the First Amendment and intellectual property laws give to your online activities.”

MiMTiD, a company that distributes automated takedown notices and allows users to search for possible copyright infringement (think Google for copyright lawyers and corporate bigwigs), is under scrutiny in particular as it’s the author of the notice in question.. Can an automated C&D notice be copyrighted, ponders the site. We’d like to know, too.

More on this news as it develops – so long as we don’t receive a DMCA notice for linking to a DMCA notice that claims it cannot be shared with anyone but the intended recipient.